APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
The defendants, Gerald Sepka and Arthur LaGace, were charged by indictment with deviate sexual assault, two counts of bribery, and two counts of official misconduct. At the close of all of the evidence the prosecution nolle prossed the two counts of official misconduct. The jury found defendants not guilty of deviate sexual assault, but guilty of bribery as charged. (Ill. Rev. Stat. 1973, ch. 38, par. 33-1(d).) Defendants were sentenced to five years probation, with 200 days to be served on periodic imprisonment.
On appeal defendants contend: (1) the prosecution's case was not sufficient to constitute proof of the elements of bribery as a matter of law; (2) even if legally sufficient, they were not proven guilty beyond a reasonable doubt; (3) defendant Sepka's right against self-incrimination was violated by the prosecution eliciting testimony that he remained silent when confronted in a lineup; (4) various improper testimony and evidentiary rulings constituted reversible error; and (5) the cross-examination of defendants concerning a "duty to arrest" deprived them of a fair trial. We reverse and remand. The pertinent evidence necessary to our review follows.
On February 28, 1973, he went to the Auto Show at McCormick Place with his son Herschel, Carol Lumpp, and Jamie Bollin. They went to the show in Elbert's car, a Cadillac Eldorado. While proceeding home from the show they stopped for something to eat at a restaurant on Roosevelt Road. Carol went to purchase some food while Elbert went across the street to a liquor store and bought a half-pint bottle of Seagram's Seven whiskey. Herschel then went to the same store to purchase a bottle of wine for Jamie. Elbert took a drink from his bottle and Jamie drank some wine.
After eating they proceeded west on Roosevelt Road toward Maywood, and soon noticed a squad car following them. Herschel pulled the car into a gas station and the squad car followed. Two police officers exited and asked Herschel for his driver's license, which he could not produce. The officers told Herschel he would have to go to jail, and told both Embrys to get out of the car. One of the officers then reached in the car and produced two brown envelopes and the open liquor bottles. He then informed Elbert that he too would go to jail for having marijuana and open liquor in the car.
The officers then placed the Embrys in the squad car. Both the squad car and the Cadillac, each driven by one police officer, then proceeded west toward the police station. En route the officers stopped, exited the cars, and conferred. LaGace told Elbert that he was going to seize his car and take him to jail. A conversation with LaGace took place in the squad car as follows:
"Q: Mr. Embry, after he told you he was going to confiscate your car and give you a year, what, if anything, else did he say?
A: He just says: `what will you do?' and I said: `I haven't got but ten dollars,' and he says: `That is no money.'
A: He says that is no money.
Q: And then what, if anything, happened?
A: And my son said: `What has he got?' And he says: `Well, I have this.' And then after he gave him that, he says: `Still no money,' so my son said: `Dad, give him your watch.'
Q: What, if anything did you do?
A: I gave it to my son and my son gave it to him.
Q: You are referring to LaGace?
At that time Elbert gave the money and watch to LaGace. The officers then searched the trunk of Elbert's car, and LaGace said, "You guys have been cooperative, I am going to let you go." The other officer then stated, "No, Blondie [Carol] is going with me." Carol got into the squad car, and LaGace returned the liquor bottles to the Embrys and let them return to the Cadillac with Jamie.
On March 14, 1973, Elbert attended a lineup out of which he identified LaGace. He later viewed another lineup, consisting of five police officers, but could identify no one.
She went to the Auto Show on February 28 with the Embrys and Jamie. On the way home they stopped to get something to eat and bought some liquor. She saw Jamie pour herself a cup of wine.
After they had been stopped by the police car one of the officers, whom she identified as LaGace, went to the driver's side and asked Herschel to get out of the car. She heard LaGace say that the driver smelled like marijuana and ask him for a driver's license. The other officer, whom she identified as Sepka, came to the passenger's side and asked Carol if she knew where the Alto Hotel was, saying that she looked familiar. Carol stated she had never seen either of the defendants before that date. Sepka ordered the passengers out of the Cadillac and LaGace then searched the car. LaGace produced two "reefers" from the back seat along with the two bottles of liquor. Carol denied that the "reefers" had been in the car at all. LaGace then told Elbert that "with the material we have here that you can go to jail, lose your job, have your car put in tow for a year and bound for $1,000." He then put the Embrys under arrest and placed them in the squad car.
Officer LaGace then told Carol and Jamie to get back into the Cadillac. The two officers conferred, after which Sepka entered the squad car and LaGace entered the Cadillac. The two cars headed south. Shortly thereafter both cars pulled over. The officers conferred, changed cars, and then drove to a mobile school unit where they stopped again. LaGace then searched the trunk of the Cadillac, including Carol's purse which was in the trunk. When the Embrys finally returned to the Cadillac they told her that the officers had taken from them money, a watch, some extra Auto Show tickets, and gift certificates. Herschel then stated that Officer Sepka had said that "Blondie's got to come with us." Carol entered the squad car and drove off with defendants to another location, where they forced her to perform acts of fellatio on them. She memorized defendants' numbers from their hats. Defendants then drove Carol back, leaving her one block from the mobile school from which they had taken her.
Carol reported the incident that night to the Maywood Police, and the next day related certain facts to a Sergeant Hines. She identified Officer LaGace from one lineup and Officer Sepka from another. On three subsequent occasions Carol was arrested for prostitution. She admitted to engaging in prostitution after this incident on about ten occasions, but denied that she previously had been a prostitute.
He had gone to the Auto Show with his father, Carol, and Jamie. On the way back they stopped to purchase something to eat and drink. Herschel purchased some wine for Jamie. In a prior statement (defendants' exhibit 4) he did not state that he had purchased wine.
Herschel then drove the car west on Roosevelt Road. As he approached Independence Boulevard, he noticed a Chicago police car at the curb. The squad car followed and pulled them over. One of the officers requested Herschel's driver's license. When he responded that he did not have one the officer ordered him from the car, and as he obeyed, the officer said, "You smell like marijuana." Herschel saw that the others had also exited the Cadillac.
One of the officers, identified as defendant LaGace, searched the back seat and found the two liquor bottles along with two yellow envelopes. LaGace did not remark what was in the envelopes. Herschel, his father, and Officer Sepka then entered the squad car while Carol and Jamie entered the Cadillac with Officer LaGace. Sepka told the Embrys that they were in pretty serious trouble, including charges of possession of marijuana, open liquor in the car, and driving without a license.
With the Embry Cadillac in the lead, the two vehicles were driven one block south then turned north, proceeding five or six more blocks before stopping. Defendants exited the cars and conversed, after which they switched cars, with LaGace getting into the squad car. In his prior statement (defendants' exhibit 4), Herschel omitted this stop and rotation of drivers. They then drove the cars to a mobile school. LaGace informed the Embrys that there were several charges against them, and asked Elbert how long he had been on his job. Herschel then testified:
"A. My father told him he had been on the job 27 years.
A. Well, he told him that 27 years on the job and then with the charges on him now that it didn't look too good for him.
Q. And what, if anything else, did Officer LaGace say at that time, or what, if anything, did your father respond?
A. At that particular time I said, my father stuff like that gets him kind of nervous, and I asked him, well, I said, `Isn't there something we can do.'
Q. And what, if anything, did Officer LaGace say to that?
A. Well, you know, at first he didn't say anything.
A. All right. Well, first of all, when I asked him if there was anything we can do, he didn't answer at first. And then my father told him, he said, `Honest to God, I don't know how that stuff got in the car. I know it couldn't have been in there because I hadn't drove the car and the car had just been washed and vacuumed, and so '
Q. Your father was saying this to Officer LaGace?
Q. And then what happened?
A. And then, at first then again he still didn't say anything and then I told him I had some tickets to the Auto Show.
Q. And what, if anything, did he respond to that?
A. He said, `Well, let me see them.'
A. I showed him the tickets.
Q. And then what happened?
A. And then I also told him that I told him how much money I had.
Q. What did you tell him?
A. I told him that I had about five dollars. In fact, it was five dollars.
Q. All right. What, if anything, did he respond to that?
A. He said, `That's no money.'
Q. What did you do then? What did you say then?
A. Well, then I told him that I had a gift certificate to Florida.
Q. Had your father said anything concerning money at this time?
A. Well, he said that he had a little money, maybe five dollars.
Q. And what, if anything, did he do with that?
A. Well, he gave it to him.
Q. What did you give to Officer LaGace?
A. Well, I gave him the two tickets to the Auto Show. I gave him a gift certificate, which is four days and three nights in Florida. And I gave him five dollars, and then eventually well, a few minutes after that I gave him my father's watch. My father took his watch off and he gave it to me, which is ...